Courts Defer to Individual Privacy Interests by Requiring Warrant To Obtain Cell Phone Data and Cell Site Records in Riley and Davis

Two recent opinions have significantly restricted the practice of warrantless collection of data stored on cell phones or by cell phone service providers. In Riley v. California the U.S. Supreme Court confirmed that a warrant is a precondition for law enforcement to perform a search of cell phone data in the context of a criminal arrest. In a separate case considering the warrantless collection of cell site location information, the Eleventh Circuit recently held in United States v. Davis that this practice violates the Fourth Amendment.

Riley v. California -

Background. The Supreme Court considered two companion cases, Riley v. California and United States v. Wurie, raising the common question of whether the police may search digital information on a cell phone seized in connection with the arrest of the phone’s owner. In the former, a police officer stopped defendant David Riley for driving with expired registration tags. The officer discovered Riley’s license had been suspended, which led to an investigatory search of the car and, ultimately, to Riley’s arrest. Riley’s smartphone, seized in the search incident to his arrest, was found to contain photographs of Riley standing in front of a car that police had previously linked to a shooting. Based on this evidence, Riley was charged with, and convicted of, assault and attempted murder. The trial court denied Riley’s motion to suppress evidence obtained from his cell phone on the basis that it had been obtained without a warrant and was not justified by exigent circumstances. The California Court of Appeal affirmed the trial court’s ruling, relying on California case law that permitted warrantless searches of cell phone data provided that the cell phone was on the arrestee’s person at the time of the arrest. The California Supreme Court declined Riley’s petition for review.

Originally published in Bloomberg BNA Criminal Reporter on July 30, 2014.

Reproduced with permission from The Criminal Law Reporter, 95 CrL 541, 07/30/2014. Copyright 2014 by The
Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com
S E ARCH AND S E I Z U R E
Courts Defer to Individual Privacy Interests by Requiring Warrant
To Obtain Cell Phone Data and Cell Site Records in Riley and Davis
BY ANDREW SERWIN, ANNA FERRARI AND LIBBY
GREISMANN
T wo recent opinions have significantly restricted thepractice of warrantless collection of data stored oncell phones or by cell phone service providers. In
Riley v. California1 the U.S. Supreme Court confirmed
that a warrant is a precondition for law enforcement to
perform a search of cell phone data in the context of a
criminal arrest. In a separate case considering the war-
rantless collection of cell site location information, the
Eleventh Circuit recently held in United States v. Davis2
that this practice violates the Fourth Amendment.
Riley v. California
Background. The Supreme Court considered two
companion cases, Riley v. California and United States
v. Wurie, raising the common question of whether the
police may search digital information on a cell phone
seized in connection with the arrest of the phone’s
owner. In the former, a police officer stopped defendant
David Riley for driving with expired registration tags.
The officer discovered Riley’s license had been sus-
pended, which led to an investigatory search of the car
and, ultimately, to Riley’s arrest. Riley’s smartphone,
seized in the search incident to his arrest, was found to
contain photographs of Riley standing in front of a car
that police had previously linked to a shooting. Based
on this evidence, Riley was charged with, and convicted
of, assault and attempted murder. The trial court denied
Riley’s motion to suppress evidence obtained from his
cell phone on the basis that it had been obtained with-
out a warrant and was not justified by exigent circum-
stances. The California Court of Appeal affirmed the
trial court’s ruling, relying on California case law that
permitted warrantless searches of cell phone data pro-
vided that the cell phone was on the arrestee’s person
at the time of the arrest.3 The California Supreme Court
declined Riley’s petition for review.
In Wurie, police officers observed defendant Brima
Wurie making an apparent drug sale. Wurie was ar-
rested, and a ‘‘flip phone’’ was seized from his person.
After it had been seized, the phone received several
calls from a phone number identified as ‘‘my house.’’
The officers used the phone to determine the phone
number associated with ‘‘my house’’ and used a direc-
tory to trace the number to Wurie’s residence. The offi-
cers obtained a warrant to search the residence. Based
on evidence obtained through this search, Wurie was
charged with distributing crack cocaine, possessing
crack cocaine with intent to distribute, and being a
felon in possession of a firearm and ammunition. He
1 134 S. Ct. 999, 95 CrL 445 (U.S. 2014).
2 95 CrL 382 (11th Cir. 2014). 3 See People v. Diaz, 51 Cal. 4th 84, 88 CrL 392 (Cal. 2011).
COPYRIGHT 2014 BY THE BUREAU OF NATIONAL AFFAIRS, INC. ISSN 0011-1341
Criminal Law Reporter™
was later convicted of all three counts. The U.S. District
Court for the District of Massachusetts denied his mo-
tion to suppress, which challenged the constitutionality
of the search of his flip phone that led to the search of
his residence on Fourth Amendment grounds. The First
Circuit reversed, holding that cell phones should be dis-
tinguished among other items on an arrestee’s person
that may be searched incident to an arrest because they
contain a host of personal data, and the limited threat
presented by cell phones to law enforcement interests
does not outweigh the intrusion upon the private infor-
mation stored in the phone.4
Supreme Court Ruling. In a unanimous opinion au-
thored by Chief Justice John G. Roberts Jr., the Su-
preme Court concluded that a warrant is necessary to
conduct a search of an arrestee’s cell phone data. The
court identified two justifications for proceeding with a
warrantless search of the area within the ‘‘immediate
control’’ of an arrestee: protecting officer safety and
preserving evidence. Chimel v. California, 395 U.S. 752
(1969). To establish the lawfulness of a search incident
to an arrest, case law does not require a ‘‘case-by-case
adjudication’’ of whether a suspicion exists that the ar-
restee may be armed or that evidence may be de-
stroyed. United States v. Robinson, 414 U.S. 218, 235
(1973). Robinson concerned an officer who made an ar-
rest for driving with a suspended license and conducted
a warrantless inspection of the contents of a
crumpled-up cigarette carton in the arrestee’s pocket
because the officer couldn’t identify the contents (later
confirmed to be capsules of heroin) without opening the
carton. The Supreme Court affirmed the search, al-
though it was not premised upon a specific concern
about evidence destruction or officer safety because, as
‘‘a custodial arrest of a suspect based on probable
cause’’ is lawful, ‘‘a search incident to the arrest re-
quires no additional justification.’’
The court questioned whether applying Robinson to
cell phones in particular would ‘‘untether the rule from
the justifications underlying the Chimel exception,
given the large volume of personal data that cell phones
are capable of storing.’’ Indeed, the type of information
stored on a cell phone is so unlike the physical property
that was ascertained through the search in Robinson
that the court found the issue to be outside the scope of
Robinson. As to the first Chimel factor—risk of harm to
the officer—the court reasoned that any threats to an
officer’s safety could be determined from the physical
aspects of the phone alone and did not require review
of any data stored on the phone. As to the second
Chimel factor—spoliation—the court acknowledged
that cell phone data is vulnerable to destruction through
encryption and remote wiping, but it concluded that
both of these concerns went beyond the scope of what
an arrestee could do to destroy evidence within his
reach. Further, it is unclear that the ability to conduct a
warrantless search would lessen the chance of encryp-
tion, and law enforcement could aim to prevent remote
wiping simply by disconnecting a phone from its net-
work. Ultimately, the court concluded that such con-
cerns were better addressed through more targeted
means, such as the warrant exception for exigent cir-
cumstances.
The court also grounded its ruling in the arrestee’s
pronounced privacy interest in the vast amounts of data
stored on a personal cell phone. The court rejected the
government’s argument that cell phone data is ‘‘materi-
ally indistinguishable’’ from the information that would
be implicated by the search of a wallet, purse or diary.
By contrast, the court found cell phone data to be fun-
damentally different in terms of their volume (the large
storage capacity of modern phones), ‘‘pervasiveness’’
(the fact that the records touch many aspects of a per-
son’s life), and qualitative aspects (such as web brows-
ing history, geolocation data and aggregation of per-
sonal information in mobile application software). Fur-
ther, because a cell phone is not only itself a repository
of information, but also a portal for accessing data
stored using cloud computing, it may not be apparent to
the searching party whether searched data is stored lo-
cally or pulled from the cloud. (As the court said, ‘‘Cell
phone users often may not know whether particular in-
formation is stored on the device or in the cloud, and it
generally makes little difference.’’) This creates a major
risk as to whether the scope of the resulting search
would be actually limited to records and effects within
close physical proximity to the arrestee.
In a concurring opinion, Justice Samuel A. Alito Jr.
questioned whether the underlying rationale for
searches incident to an arrest is not actually officer
safety or evidence preservation but rather to obtain pro-
bative evidence. Instead, he found that these two ratio-
nales are served by seizing and securing items found on
an arrestee’s person, not by searching them. Justice
Alito also noted that the majority’s ruling creates a like-
lihood that the same type or category of information
could be entitled to different levels of protection de-
pending upon whether it was stored in physical or elec-
tronic form. The concurrence suggested that the court
would be better positioned to resolve such anomalies if
the legislation drew more refined distinctions about
how to treat particular categories of information.
Implications. Riley makes clear that a warrant is
needed to perform a search of cell phone data incident
to an arrest, and the ruling will subject law enforcement
to more judicial oversight as they attempt to search the
contents of cell phones. To comply with Riley, law en-
forcement must adjust their tactics and focus on seizing
and securing cell phones so that their contents may
later be searched if a warrant issues.
The Riley opinion identifies many similarities be-
tween smartphones and computers, such as the type of
data generated and stored by each and the availability
of software applications on each that collect and use
personal data. The concerns raised in Riley may require
4 United States v. Wurie, 728 F.3d 1, 93 CrL 268 (1st Cir.
2013).
Andrew Serwin is a partner in Morrison &
Foerster LLP’s global privacy and data security
practice group in San Diego. Anna Ferrari is a
senior associate in Morrison & Foerster’s pri-
vacy and employment practice groups and is
resident in the firm’s San Francisco office.
Libby Greismann is an associate in Morrison &
Foerster’s Washington office, where she fo-
cuses her practice on complex privacy and
data security issues.
2
7-30-14 COPYRIGHT 2014 BY THE BUREAU OF NATIONAL AFFAIRS, INC. CRL ISSN 0011-1341
reconsideration of the standards for performing war-
rantless searches of other electronic media and applica-
tion, such as personal computers and social media ac-
count information.
In addition, although Riley arose in the criminal ar-
rest context, its sweeping language about the privacy
interest in the contents of one’s personal cell phone will
surely be relied upon by plaintiffs challenging the prac-
tices of companies that collect and use their personal
data without consent. Indeed, the opinion’s detailed
analysis of the basis for an arrestee’s privacy interest in
the types of information that may be stored on a cell
phone, such as Internet search histories or geolocation
data, may soon be found to apply with equal force to
collections performed by a nongovernmental entity.
Similarly, although Riley principally concerns data that
is stored locally on cell phones, dicta in Riley will lend
support to service providers’ objections to broad, war-
rantless government requests for subscriber records,
such as cloud data.
United States v. Davis
Background. The information at issue in Davis—cell
site location information—typically reveals a record of
calls made or received by the customer of a cell phone
provider. However, this information also typically in-
cludes which cell tower carried each call, and it is there-
fore generally possible to deduce the approximate
physical location of the customer. Prior courts had held
that the Stored Communications Act, 18 U.S.C. § 2701
et seq. (SCA), permitted a governmental entity to ‘‘re-
quire a provider of electronic communication service
. . . to disclose a record or other information pertaining
to a subscriber to or customer of such service’’ pursu-
ant to a court order (Section 2703(c)(1)(B)). This type of
order was generally issued upon a showing of ‘‘specific
and articulable facts,’’ a lesser standard than the Fourth
Amendment’s probable cause requirement.
Defendant Quartavious Davis was convicted of theft,
conspiracy and possession of a firearm in connection
with a string of seven robberies of commercial estab-
lishments. The government obtained cell site location
information from Davis’s cell phone service providers
pursuant to Section 2703(c)(1)(B), and this information
was used to convict him. In support of reversal, Davis
argued that the admission of stored cell site location in-
formation that the government had obtained from Da-
vis’s cell phone provider by court order without a war-
rant violated the Fourth Amendment.
Appellate Decision. On appeal, Davis contended that
obtaining the cell site location data without a warrant
violated his constitutional rights under the Fourth
Amendment and the government asserted that such evi-
dence was properly obtained by court order under the
SCA.
The Eleventh Circuit acknowledged the well-settled
principle that the Fourth Amendment applies to war-
rantless searches and seizures of electronic data, but it
questioned whether that protection was limited to the
content of the data as opposed to its transmission. The
court analyzed United States v. Jones,5 in which the Su-
preme Court found that the warrantless use of a GPS
tracking device to monitor the movements and location
of a suspected drug dealer’s car violated the defen-
dant’s Fourth Amendment rights. The Eleventh Cir-
cuit’s opinion walked through the two distinct views of
the interests protected by the Fourth Amendment: the
property-based ‘‘trespass theory,’’ in which the amend-
ment protects the property rights of the people, and the
more modern view that the Fourth Amendment protects
the privacy rights of the people whether or not the
search constituted a trespass. Although Jones was de-
cided under the trespass theory (in that the placing the
GPS device on Jones’s car constituted a trespass), four
justices concurred that the same result could have been
reached under a privacy theory.6
Although there had been no trespass to Davis’s per-
son or property, the court found Jones’s privacy analy-
sis instructive. In Jones, the Supreme Court rejected the
government’s argument that the defendant had no rea-
sonable expectation of privacy with respect to the loca-
tion and movement of his automobile on public streets.
Although each of a car’s individual movements on pub-
lic streets is exposed to the public and may be observed,
a car’s movements, aggregated together over the course
of weeks, is not so exposed and the expectation of pri-
vacy in those movements is reasonable. Under this prin-
ciple, referred to as the ‘‘mosaic theory,’’ such aggre-
gated information would potentially reveal more private
information than could be extrapolated from individual
pieces of information about a person’s whereabouts.
The Davis court found that a cell phone, which can
accompany its owner virtually everywhere, undetected,
would be less exposed to the public than a car’s travel
might, giving rise to a stronger argument in support of
a reasonable expectation of privacy on the part of the
cell subscriber. The Eleventh Circuit also stated that,
unlike GPS location data, which under Jones is pro-
tected only in the aggregate, even a single point of cell
site location data should be presumptively private.7
Although the government attempted to distinguish
Jones on the basis that GPS location data is more pre-
cise than cell site location data, the court found this ar-
gument to contradict the very reason the location evi-
dence was offered in the first place. If the data revealed
sufficient information about a person’s location to sup-
port a criminal conviction, it did not follow that the lo-
cation information would remain too vague to violate a
person’s reasonable expectation of privacy.
The government’s argument that Davis waived his
expectation of privacy by disclosing his location infor-
mation to his cell phone provider when he placed calls
was also found to be unpersuasive. The court found no
5 132 S. Ct. 945, 90 CrL 537 (2012).
6 Jones at 958 (Alito, J., concurring). In a separate concur-
rence, one additional justice considered the potential applica-
tion of this theory but found it unnecessary to reach the merits
of its application because the trespass theory ‘‘supplies a nar-
rower basis for decision.’’ Jones at 957 (Sotomayor, J., concur-
ring.)
7 The court said: ‘‘[E]ven on a person’s first visit to a gyne-
cologist, a psychiatrist, a bookie, or a priest, one may assume
that the visit is private if it was not conducted in a public way.
. . . Thus, the exposure of the cell site location information can
convert what would otherwise be a private event into a public
one . . .That is, [cell site data] is private in nature rather than
being public data that warrants privacy protection only when
its collection creates a sufficient mosaic to expose that which
would otherwise be private.’’). Davis at **24.
3
CRIMINAL LAW REPORTER ISSN 0011-1341 BNA 7-30-14
indication that Davis knowingly and voluntarily dis-
closed his location with respect to the calls that he
placed and that no disclosure could have been made by
Davis with respect to the calls that he received.
Although the court concluded that Davis had a rea-
sonable expectation of privacy in his cell site location
data, and that obtaining such data without a warrant
violates the Fourth Amendment, admission of this data
at trial did not constitute reversible error. Because the
court order was issued pursuant to judicial mandate,
the ‘‘good faith’’ exception to the exclusionary rule ap-
plied.
A Conflict in Holdings. The Eleventh Circuit is not the
first court to conclude that individuals have a protect-
able privacy interest in location data generated from
cell phones. The New Jersey Supreme court held previ-
ously in State v. Earls8 that the New Jersey Constitution
protects an individual’s privacy interest in the location
of his or her cell phone such that law enforcement offi-
cers must obtain a warrant based upon a showing of
probable cause, or qualify for an exception to the war-
rant requirement, before they may obtain related re-
cords. The Earls court analogized the Supreme Court’s
concurrences in Jones, while acknowledging that be-
cause Jones was decided under a trespass theory, it did
not compel a warrant. In that respect, Davis expands
upon Earls by suggesting that the Fourth Amendment
does require either a warrant or a qualifying exception
to the warrant requirement.
Davis, however, is in conflict with Fifth Circuit prec-
edent finding that the government may seek location
data from cell phone service providers without a war-
rant. In re Application of the United States of America
for Historical Cell Site Data9 reversed a district court’s
adoption of a magistrate’s ruling denying the govern-
ment cell site location records on Fourth Amendment
grounds, holding instead that the magistrate did not
have discretion to refuse to grant an order where a
showing of ‘‘specific and articulable facts’’ had been
made. In so ruling, the Fifth Circuit relied on the fact
that the location data is a business record maintained
by the third-party service provider and in that way is
similar to other records that may be obtained by a sub-
poena. Unlike the Eleventh Circuit, the Fifth Circuit
also concluded that the subscriber had conveyed its lo-
cation data voluntarily to the cell phone service pro-
vider in the course of using the phone to make calls.
The Fifth Circuit’s opinion echoes a prior Third Cir-
cuit ruling, In the Matter of the Application of the
United State of America for an Order Directing a Pro-
vider of Electronic Communication Service to Disclose
Records to the Government,10 which reversed an order
declining to provide cell phone location information on
Fourth Amendment grounds, and holding that a magis-
trate judge may require a warrant only after consider-
ing whether the government has met the SCA’s ‘‘spe-
cific and articulable facts’’ requirement.
The Davis court acknowledged these two prior rul-
ings but declined to analyze them further because each
arose in the context of a criminal investigation, as op-
posed to a pending criminal proceeding and because
the Third Circuit’s decision predated Jones.
The end result of Davis, however, extends beyond the
reach of Jones by finding that even a single point of cell
site location data is presumptively private. This conclu-
sion is somewhat at odds with the Davis court’s own ob-
servation that ‘‘committing a crime is certainly not
within a legitimate expectation of privacy.’’ In spite of
this tension, Davis does not appear to require a court to
conduct a factual inquiry into whether a reasonable ex-
pectation of privacy actually exists in the specific con-
text of where the phone user was—such as whether on
public or private property—and what he or she was do-
ing with the cell phone. As a result, cell site location
data would require a warrant where surveillance cam-
era footage would not, even where both pieces of evi-
dence had been procured by third parties (and not the
government) for their own business purposes and both
similarly placed a criminal defendant at the scene of a
crime.
Implications. The circuit split resulting from Davis
suggests this issue is well-suited for Supreme Court re-
view.11 If upheld, Davis would expand Fourth Amend-
ment doctrine to include the premise that certain facts
about an individual’s location are inherently private,
such that they cannot be discovered using cell site loca-
tion data obtained without a warrant, even though com-
parable information about a subscriber’s whereabouts
may already be in the public domain. A holding of this
scope may have significant consequences for compa-
nies that maintain consumer location records and that
may be asked or ordered to disclose these records in
connection with criminal investigations and proceed-
ings. In deference to Davis, pending further clarifica-
tion from the Supreme Court, such companies should
respond to requests for such information only where a
warrant has been issued. Although Davis found that the
district court did not err by failing to suppress cell site
location evidence obtained in good faith pursuant to a
court order, it is not clear from Davis whether a compa-
rable good-faith exception would afford service provid-
ers with a defense to civil liability for the unlawful dis-
closure of this information.
8 214 N.J. 564, 93 CrL 552 (N.J. 2013).
9 724 F.3d 600, 93 CrL 605 (5th Cir. 2013).
10 620 F.3d 304, 87 CrL 851 (3d Cir. 2010).
11 Earls, which was decided narrowly on the basis of New
Jersey state law, is not in conflict with either holding, because
Section 2703(d) of the SCA expressly defers to any state laws
that would prohibit a court order to produce cell site location
data from issuing.
4
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